New PPP Loan Forgiveness and Loan Review Interim Final Rules: SBA May Review Any PPP Loan, Regardless of Size, Concerning Forgiveness, Use of Proceeds and Eligibility
May 29, 2020
Authored by: LaDawn Naegle and Vicki Westerhaus
The SBA released a set of interim final rules to provide additional guidance and clarity to borrowers and lenders both for loan forgiveness and for SBA loan review procedures under the Paycheck Protection Program (“PPP”). The loan forgiveness interim final rule supplements the guidance provided by the actual PPP loan forgiveness application previously published by the SBA, providing timing information and allocating responsibilities as between the lender and the borrower. The SBA loan review procedures interim final rule sheds little additional light on what borrowers should expect, but does provide additional guidance for lenders with respect to their role in the review process.
With respect to the SBA review process, the interim final rule makes clear that the SBA may choose to review any PPP loan, regardless of size, concerning not only forgiveness amounts and use of proceeds, but also eligibility in the first instance. The SBA previously announced a safe harbor of sorts for any borrower of less than $2 million regarding the “necessity” certification. The SBA included in its Frequently Asked Questions FAQ #46 that “[a]ny borrower that, together with its affiliates, received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith.” No mention was made of this safe harbor, or the related statement in FAQ #46 that if a borrower repays a PPP loan after a determination by the SBA that